Following Cawthorn’s decision to seek election in North Carolina’s new 11th Congressional district, two voters file new challenge before the North Carolina State Board of Elections

RALEIGH, NC – Two North Carolina voters have filed a new legal challenge to U.S. Representative Madison Cawthorn’s eligibility to appear on the 2022 primary ballot, with more challengers anticipated to join in the coming days. The challenge, filed before the North Carolina State Board of Elections, alleges that Cawthorn is constitutionally disqualified from public office under the Fourteenth Amendment to the U.S. Constitution based on evidence that he helped facilitate the January 6, 2021 insurrection.  The voters are represented by Free Speech For People, a nonpartisan, non-profit legal advocacy organization with constitutional law expertise, which is serving as co-lead counsel in the matter; Womble Bond Dickinson, a North Carolina law firm serving as co-lead counsel; Wallace & Nordan, a North Carolina law firm specializing in election law; and Robert F. Orr, a former Republican Justice of the North Carolina Supreme Court.  James G. Exum, Jr., a former Chief Justice of the North Carolina Supreme Court, serves as Of Counsel in the matter.

Section Three of the Fourteenth Amendment, known as the Disqualification Clause, provides: “No Person shall be a Senator or Representative in Congress. . . who, having previously taken an oath, as a member of Congress . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The purpose of the Disqualification Clause, enacted in the wake of the Civil War, is not to punish the oathbreaker but rather to protect the country. No criminal conviction or prior adjudication is required under the Disqualification Clause, although Cawthorn would be able to seek judicial review of an adverse decision.

The North Carolina State Board of Elections declared as invalid a previous challenge to Cawthorn’s candidacy in North Carolina’s 13th congressional district after the North Carolina Supreme Court ruled the district lines created by the North Carolina Legislature unconstitutional and established new congressional district lines which placed the challengers outside the 13th district.  On February 28, 2022, Cawthorn withdrew his candidacy from the 13th district and filed in the new 11th district.  Two unaffiliated voters who live in the 11th district, one of whom is a former Republican county commissioner for Transylvania County, have initiated a new challenge.   

“The coordinated and violent January 6 attack on the United States Capitol in an effort to prevent Congress from certifying the presidential vote was an insurrection against the United States. The Constitution disqualifies from public office any elected officials who aided that insurrection,” said Ron Fein, Legal Director of Free Speech For People. “As set forth in our complaint, the publicly available evidence, including Representative Cawthorn’s own statements and reports that he or his office coordinated with the January 6 organizers, establish reasonable suspicion that Representative Cawthorn aided the insurrection, thereby disqualifying him from federal office. We look forward to asking him about his involvement under oath.”

Under North Carolina’s candidacy challenge statute, any registered voter in his district may challenge his candidacy based on “reasonable suspicion or belief” that he “does not meet the constitutional or statutory qualifications for the office.” Once a challenge is filed, the burden of proof shifts to the candidate, who “must show by a preponderance of the evidence . . . that he or she is qualified to be a candidate for the office.” The statute authorizes “depositions prior to the hearing, if requested by the challenger,” and “subpoenas for witnesses or documents . . . including a subpoena of the candidate.” The challengers intend to depose Cawthorn and members of his staff—something that the U.S. House January 6 Select Committee has not yet done.

As set forth in the complaint, the publicly available evidence establishes reasonable suspicion that Cawthorn helped facilitate the insurrection.  Specifically, the evidence provides reasonable suspicion that he helped to plan efforts to intimidate Congress and the Vice President into rejecting valid electoral votes, including by helping to plan the demonstration at the Ellipse and/or march on the Capitol, for the purpose of obstructing essential constitutional functions and preventing an orderly transition of power to the lawfully elected incoming government, with the advance knowledge that the events he helped plan were substantially likely to lead to the violent assault on the Capitol. In the weeks leading up to January 6, Cawthorn publicly urged his followers to threaten and intimidate Members of Congress into blocking certification of 2020 election results. As the date approached, Cawthorn or his staff were in close contact with rally organizers. His speeches, tweets, and other public statements establish reasonable suspicion that he helped plan the demonstration and/or march with advance knowledge of the violent attack. Furthermore, his speeches since then suggest that he continues to endorse political violence as a tool for intimidation.

Professor Gerard Magliocca of the Indiana University Robert H. McKinney School of Law, one of the nation’s leading experts on Section Three of the Fourteenth Amendment, is prepared to serve as an expert witness in support of the voters’ challenge.

The challenge will first be heard by a multi-county panel to be appointed by the North Carolina State Board of Elections. After the hearing, the panel will issue written findings of fact and conclusions of law. Its decision can be appealed by either side to the State Board, and the State Board’s decision can be appealed to the North Carolina Court of Appeals.

In recent federal court filings, the North Carolina State Board of Elections has confirmed its authority to enforce the Disqualifications Clause through the North Carolina candidate challenge statute. While state election authorities cannot impose additional qualifications upon federal candidates, they can (as confirmed by then-Judge, now-Justice Neil Gorsuch) exclude candidates from the ballot who do not meet the qualifications established by the Constitution itself. For example, in 2011, the General Counsel of the North Carolina State Board of Elections opined that a candidate who is constitutionally ineligible for the office of President of the United States “will not qualify” as a presidential candidate in North Carolina. In Cawthorn’s case, the North Carolina State Board of Elections may adjudicate his ineligibility under the Disqualifications Clause, subject to judicial review in the North Carolina Court of Appeals. (Congress has the power to judge the constitutional qualifications of certified winners in the general election, but not at the initial ballot access stage.) 

“Claiming to be fighting a battle for our Constitution, Cawthorn has engaged in blatant acts of insurrection,” said John R. Wallace of Wallace & Nordan.  “He must be held accountable for his actions which have threatened our democracy. Wisely, the Constitution provides a remedy for our protection. We seek here the imposition of that remedy.”

“This challenge is all about enforcing the Constitution of the United States,” said Robert F. Orr.  “The Constitution mandates that those who take the oath to support the Constitution and then violate that oath shall be disqualified from holding office.  I’m privileged to participate with the team from Free Speech for People and my fellow North Carolina counsel, in this critically important effort to enforce that constitutional mandate and disqualify Madison Cawthorn from attempting to be elected to public office in 2022.”

“The purpose of the constitutional provision relied on by the challengers to Mr. Cawthorn’s candidacy is to prevent persons who sought illegally to overthrow a duly elected government from participating in running that government,” said James G. Exum, Jr.  “The challengers believe the evidence will show Mr. Cawthorn to be one of those persons.”

“On many levels, our democracy is under threat, and grassroots activists are ready to stand up to defend it,” said Paco Fabián, Director of Campaigns for Our Revolution. “We need to demand that our election officers follow the rule of law and ensure that current and former elected officials who participated in the January 6th insurrection are barred from appearing on any future ballot.”

Free Speech For People and Our Revolution are co-leading a national campaign to ensure that election officials across the country follow the mandate of Section 3 of the Fourteenth Amendment.  More information about that campaign is available at www.14point3.org. 

Read the full complaint here.